Terlizzi v. State

• Decision Date: 07 December 1926
• Docket Number: No. 25074.,25074.
• Citation: 198 Ind. 491,154 N.E. 276
• Court: Indiana Supreme Court
• Parties: TERLIZZI v. STATE.

198 Ind. 491

154 N.E. 276

TERLIZZI

v.STATE.

No. 25074.

Supreme Court of Indiana.

Dec. 7, 1926.

Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.

Maria Terlizzi was convicted of second degree murder, and she appeals. Affirmed.

Wm. J. McAleer, Francis J. Dorsey, Gerald A. Gillett, and Perry R. Chapin, all of Hammond, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward M. White and Edward J. Lennon, Jr., Deputy Attys. Gen., for the State.

EWBANK, J.

This is an appeal from a conviction of murder in the second degree. Overruling the motion for a new trial is assigned as error, under which appellant specifies the giving of instruction No. 13, and the refusal to grant a new trial because of newly discovered evidence to the effect that she was insane at the time of the homicide and at the time of the trial. The evidence showed without dispute that appellant went to the home of a girl recently married to her son, and, after exchanging a few words, shot the girl through the neck and again shot her through the back as she ran out of the door and fell down an outside stairway, and after following to the top of the stairs as if to see the effect of her shots, went out upon the street through the front door of the house and into her own home a few doors away, where she left the gun lying on a table in her front room; that after she had been arrested she asked if the girl was dead, and, being answered in the negative, she admitted having shot her and said she would like the girl to die, and then, upon being told that she was dead, exclaimed “Thank God! she is dead; that is good.” And on the witness stand appellant admitted having shot the girl, giving as a reason that she was very angry because some crochet work which she had sent her was returned, and the girl had said that she sent it back because she did not want appellant's son, but had “got another man.” And it was shown that appellant's son had furnished the money with which the girl came from Italy, after which they had been married according to the civil law but were waiting for a church ceremony before the marriage should be consummated, and appellant had accused the girl of asking her son for money when they were visiting among relatives in Chicago.

[1] The indictment charged murder in the first degree and the only plea was “not guilty,” unsoundness of mind not being pleaded. And since the homicide was clearly proved by the uncontradicted evidence of a number of witnesses, including the appellant herself, the doctrine of reasonable doubt had little application to anything under the issues except determining the degree of homicide which appellant had committed. On this subject the court instructed the jury that:

“If you entertain a reasonable doubt as to whether she is guilty of first or second degree murder, if guilty at all, then it will be your duty to find her guilty of murder in the second degree; or if you entertain a reasonable doubt as to whether she is guilty of murder or manslaughter, then it will be your duty to find her guilty of manslaughter.”

But the court also gave an instruction of which appellant complains, undertaking at some length to define reasonable doubt, in which occurred the statement that a reasonable doubt “must be based on some good reason arising out of the evidence in the case or lack of evidence as to some material fact or facts of the case.” In support of her contention that this was error, appellant cites Siberry v. State, 133 Ind. 677, 688, 33 N. E. 681, and Scheerer v. State (Ind. Sup.) 149 N. E. 892, holding an instruction which told the jury that “a reasonable doubt is such a doubt as the jury are able to give a reason for” to be erroneous. Without undertaking to say whether an instruction that a reasonable doubt “must be based on some good reason arising out of the evidence in the case or lack of evidence as to some material fact or facts of the case” might constitute reversible error as applied to evidence of doubtful circumstances, we hold that appellant could not have been harmed by the giving of this instruction, in view of the uncontradicted evidence...